IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
FROM NUECES COUNTY
O P I N I O N
This is a post-conviction application for writ of habeas corpus filed pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure. Applicant was convicted of possession of a controlled substance, and sentenced to eight years in prison. No appeal was taken from this conviction.
Applicant contends, inter alia, that he is not receiving credit in federal custody for his state sentence, although the parties agreed that his state and federal sentences would run concurrently. Applicant is entitled to withdraw his plea since the Bureau of Prisons is not giving him credit. It is clear from the record that Applicant's plea was based on the agreement that his sentences would run concurrently. The trial court has recommended that relief should be granted.
This case was remanded for the trial court to resolve the issues by ordering "affidavits from the Federal Bureau of Prisons, depositions, interrogatories or a hearing." The trial court was then to "make findings of fact as to whether Applicant is receiving credit on his federal sentence." Applicant has attached a federal time sheet which reflects that Applicant was "paroled from TDCJ to the U.S. Marshals on 11-12-03." It also reflects "11-12-03" as the beginning date for the computation of time. This demonstrates that the federal government is beginning Applicant's federal sentence on the date he was received into federal custody, meaning that they are not giving him credit for the earlier time he served in state custody. The record before us remains uncontradicted, therefore it reflects that Applicant is entitled to relief.
The relief sought is granted to the extent that the judgment in cause number 00-CR-3650 A (1) from the 28th District Court of Nueces County is set aside. Applicant is ordered remanded to the Sheriff of Nueces County to answer the indictment in cause number 00-CR-3650A(1). Applicant's remaining claims are denied.
DELIVERED: September 15, 2004
DO NOT PUBLISH